Devarsh Nath Gupta vs State Of U.P. And 3 Others
2019 Latest Caselaw 4798 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A F R
 
Reserved on 29.04.2019
 
Delivered on 21.05.2019 
 
Court No. - 34
 
Case :- WRIT - C No. - 871 of 2019
 
Petitioner :- Devarsh Nath Gupta
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Zain Abbas
 
Counsel for Respondent :- C.S.C.,Gagan Mehta, Ashok Mehta
 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Rajendra Kumar-IV, J.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri Zain Abbas, learned counsel for petitioner, learned Standing Counsel for State-respondent and Sri Ashok Mehta, Senior Advocate assisted by Sri Gagan Mehta, learned counsel for University-respondent 3.

2. This writ petition under Article 226 of Constitution of India has been filed by sole petitioner Devarsh Nath Gupta, undergoing medical course i.e. Bachelor of Medicine, Bachelor of Surgery (hereinafter referred to as 'M.B.B.S.') in S. N. Medical College, Agra (hereinafter referred to as 'S.N.M.C.') affiliated to Dr. B. R. Ambedkar University, Agra (hereinafter referred to as 'Agra University'), it is a clear illustration of irresponsible and unaccountable act of Examiners in performance of their duty of evaluation of answer sheets, causing great loss to Examinees.

3. Many or most of the matters, where such negligence is shown by Examiners, remain uncomplained of, since, Students/Examinees lack resources or information, or, many times do not have requisite awareness as to how such situation be dealt with, hence permanently suffer on account of scrupulous act of such Examiners, as has been done in the present case.

4. Petitioner, a meritorious Student, over all A1 Grade (Grade A1, 9.6 in Class X and about 90 per cent marks in Senior School Certificate Examination 2016), secured 6906 All India Rank in National Eligibility cum Entrance Test, 2017 (99.36 percentile scored). He got admission in M.B.B.S. Course in S.N.M.C., Agra which is affiliated to Agra University. He appeared in M.B.B.S. (Ist Professional) Examination held in December 2018. In Second Paper of Physiology, out of 50 he was awarded only 6 marks, though secured 344 marks out of 600, but declared fail. He submitted an application dated 15.12.2018 for scrutiny of marks and rechecking of answer sheet, but no action was taken by University. Thereafter, under the provisions of Right to Information Act, 2005 (hereinafter referred to as 'Act, 2005'), he on 14.12.2018 applied for a copy of answer sheet of above paper.

5. Question paper of Physiology, Paper-II, M.B.B.S. (Ist Professional) Examination 2018, contained only five questions. First four questions were descriptive of 10 marks each and fifth question required Examinees to write short notes on two aspects, having 5 marks each.

6. Answer sheet was supplied to petitioner showing that virtually it was not evaluated by Examiner at all. In an abrupt manner, in three questions, he was awarded 2 marks each, though no answer was found wrong.

7. Thereafter, this writ petition was filed seeking following reliefs :-

"(A) Issue a writ of mandamus directing the respondents to get the answer sheet of the petitioner be rechecked through different examiner so that a proper checking of the answer sheet of the petitioner for Paper-II subject Physiology for M.B.B.S. (Ist Prof) Examination is done and it is further prayed that this Hon'ble Court may also be pleased to direct the Respondents that in case the marks of the petitioner are increased in the rechecking then an amended result may also be issued in favour of the petitioner within a stipulated time as may be directed by this Hon'ble Court.

(B) To issue any other suitable writ, order or direction in favour of the petitioner as this Hon'ble Court may deem fit and proper in the present facts and circumstances of the case.

(C) Award cost of the petition in favour of the petitioner."

8. Initially, when this matter came up before this Court on 18.01.2019, Sri Gagan Mehta, learned counsel for Agra University informed that result of scrutiny will be declared, therefore, two weeks' time was allowed. Thereafter, matter could not be taken up and came up before this Court on 12.04.2019. In the meantime, an affidavit was filed by respondent 3 i.e. Agra University stating that Examination Controller had issued directions/orders to all Examiners to check answer sheets with full care and caution. University and its Authorities also supervise Centres to ensure that Examiners and Co-Ordinators act with due diligence and care while evaluating the answer sheets. Petitioner, Devarsh Nath Gupta, student of Ist Year, Roll No.1808507714041, Enrollment No.17901 appeared in Physiology, Paper-II (Code-M335), held on 11.01.2018. Said examination was part of Semester Examination May-2018, M.B.B.S. (Ist Year) conducted by Agra University. The answer sheet showed that in respect to questions 1, 3 and 4, petitioner was awarded 2 marks each, but no marks were awarded in respect to question 2 and question 5(a) and 5 (b).

9. On 12.04.2019, when matter came up before this Court, learned counsel for University contended that in Agra University, there is no provision for revaluation or rechecking of answer sheet, therefore, result of scrutiny or evaluation could not be published and request of petitioner could not be accepted.

10. However, learned counsel for petitioner contended that it is not the case of any error in evaluation as such, but a case of gross negligence and irresponsibility, since, Examiner virtually has not checked entire answer sheet of petitioner and in a scrupulous manner, three answers have been awarded 2 marks each, leaving other answers unchecked. He produced photo copy of answer sheet received from Agra University under provisions of Act, 2005. On perusal, we found that petitioner has given answers to five questions running in 36 pages of answer sheet, but almost every page, except pages 11, 25 and 30, on which Examiner has given 2 marks, he has not even touched pen.

11. This was really surprising. Apparently we were of opinion that answer sheet of petitioner was not at all evaluated by concerned Examiner by application of mind and in an abrupt manner 2 marks to three answers have been awarded. Hence, we passed following order on 12.04.2019 :

"1. It is a serious matter where answer-sheet of petitioner for Paper no. 2 in Physiology in M.B.B.S. Examination-2018 has been found virtually unchecked and arbitrarily result has been declared as failed.

2. Petitioner has obtained photo copy of answer-sheet under provisions of Right to Information Act, 2005 (hereinafter referred to as 'Act,2005') which has been placed before us. We find allegations, true. It is really shocking on the part of University and in our view, it is nothing but a fraud played by University on the entire examination.

3. We do not know how mistake of such kind has been committed by University and future of students has been put in jeopardi.

4. Counsel for University is not able to give any effective explanation except showing that petitioner has now appeared in back paper, therefore, writ petition should be dismissed as infructuous.

5. We agree with basic contention of petitioner that there is a fraud played on the examination. Petitioner has placed before us answer-sheet obtained by him from R.T.I. from the University in support of his contention. We, therefore, direct the Registrar of Dr. B.R. Ambedkar University to appear before this Court to explain as to why serious action may not be taken against the University and also to declare it unable to hold any further examination at all and pass such detrimental order so that future of students may not be spoiled, whether provisionally or otherwise. The Registrar of the University shall appear before this Court on 22.04.2019.

6. List on 22.4.2019.

7. Learned counsel appearing on behalf of the University is directed to communicate this order to the Vice Chancellor and Registrar of Agra University for its information and compliance."

12. Though, it was an extraordinary step, but looking to gravity of issue raised in this writ petition and kind of irresponsibility, which prima facie, we found on the part of Examiner, it was found expedient to adopt this procedure. We sent answer sheet for evaluation with a direction to Principal, Moti Lal Nehru Medical College, Allahabad (hereinafter referred to as 'Allahabad Medical College'), which is also a State Medical College, to get answer sheet evaluated by three separate Approved Examiners.

13. Three sets of answer sheets were prepared from the copy of answer sheet made available by petitioner, under provisions of Act, 2005 from Agra University, and sent in three sealed envelopes to Principal, Allahabad Medical College. He has submitted report along with evaluation of answer sheet of petitioner by three different Expert Examiners in the subject. He has also written that in Allahabad University there were only two Authorized Examiners in the subject, by Medical Council of India (hereinafter referred to as 'M.C.I.'), therefore, one copy was forwarded to Professor Dr. Manish Bajpai, Department of Physiology, K. G. Medical University, Lucknow for evaluation.

14. These three Examiners have awarded 19, 20 and 21 marks respectively, in their individual separate evaluation, which are shown in the form of chart as under :

Name Of Examiners

Q. Nos.

Dr. R. B. Kamal (Prof. And Head) Department Of Physiology, MLN Medical College, Prayagraj

Dr. Kavita Chawla, Associate Prof. Physiology, MLN Medical College, Allahabad

Dr. Manish Bajpai

Professor, Department of Physiology, K.G.'s Medical University, Lucknow

Original marks

Marks awarded for respective questions

5.5

5.5

3 ½

-

3.5

5 (a)

1.5

1 ½

-

(b)

-

Total Marks

15. Evaluation made by above three Examiners broadly is similar and there is no marked difference in evaluation made by them. In the original marks awarded, petitioner has been given 2 marks each in questions 1, 3 and 4 while in questions 2, 5 (a) and 5 (b) all the three Examiners, who have made evaluation under the orders of this Court have awarded reasonably good or some marks to petitioner. Even on questions 1, 3 and 4, marks awarded by original Examiner do not come any closer to marks awarded by these three Examiners.

16. Since, we have gone through copy of answer sheet, which petitioner has obtained under Act 2005 and find that virtually it is unchecked copy and apparently it was evident that Examiner has not awarded marks by application of mind and, stand now fortified from evaluation made by three expert Examiners in the report.

17. It is really shocking and disappointing where a beginner professional student has met his fate at the hands of such an irresponsible and negligent Examiner, who has not cared to evaluate answer sheet with due application of mind. It also reflects upon lack of efficiency and appropriate supervision on the part of Examining Authority, i.e. Agra University, which is employing such Examiners to evaluate answer sheets of students, who are not honest to their job and do not hesitate in giving or not giving marks to students in most careless, negligent and blindfold manner. We are sorry to observe that such Examiners/Evaluators can neither be said to be a good Teacher nor a good Examiner and they are totally unfit to hold such position. A teacher has a pious duty and responsibility towards students and under an obligation to discharge his duty of evaluation, whenever he is required to do so, in a most careful, honest and efficient manner. He is expected to show highest degree of devotion since the entire career of Examinees is involved.

18. Our education system is such where merit of a student is judged simply by marks he has obtained in examination, which is conducted, ordinarily, annually, or semester-wise. What he has learnt throughout the semester/year, has to be shown by him in three hours examination. His merit is reflected in marks ultimately he has secured in said examination. Thus, virtually career of students is in hands of such Examiners or Evaluators, who are assigned duty of evaluation of answer sheets, which is virtually a three hours labour of a student and the ultimate assessment would be a benchmark about his knowledge, performance, learning, wisdom, intelligence etc, which he has acquired in the entire period of examination. If Examiners/Evaluators do not discharge their duties with due care and caution, instead perform in shallow and shabby manner, it is bound to cause permanent blot and loss to Examinee concerned, which he would have to suffer and carry throughout his career. It may cause permanent damage to his future also, in a given case.

19. Time and again, Academicians have discussed in various Conferences and Seminars about effectiveness of education system prevailing in the country and various suggestions have come. Various recommendations have been made by Experts, Committees etc. in this regard, but the fact of day is that we have been not been able to find out any better system than what is prevailing and that is how system of three hours examination to judge the entire academic quality of a student is persisting since last more than a century.

20. We have no quarrel with the system as such at this stage, since neither we are Reformers to academic system which is prevailing nor we are Experts to suggest any particular system, but we are concerned to glaring infirmities which have intruded in the system, particularly at the stage of evaluation of answer sheets when Examiners/Evaluators are not serious enough in discharge of their duties and do not care to make correct evaluation, but award marks in just reckless, casual fashion without going through answer sheet and reading the same.

21. In India, a teacher enjoys a very high reputation. We give him a very high status and position in the society. In Hindu scriptures, place of Teacher is that of God like Brahma, Vishnu and Mahesh. There is a well known verse, "Gurur Brahma, Gurur Vishnu, Gurur Devo Maheshwaraha".

22. Special status of teacher has been reminded by Court in Avinash Nagra vs. Navodaya Vidyalaya Samiti and others (1997) 2 SCC 534. Quoting Father of the Nation, Court said that a teacher cannot be without character. If he lacks it, he will be like salt without its savour. A teacher must touch the hearts of his students. Boys imbibe more from the teacher's own life than they do from books. If teachers impart all the knowledge in the world to their students but do not inculcate truth and purity amongst them, they will have betrayed them. Quoting Shri Aurobindo, Court said that it is the teacher's province to hold aloft the torch, to insist at all times and at all places that this nation of ours was founded on idealism and that whatever may be the prevailing tendencies of the times, our children shall learn to live among the sun-lit peaks. Court also referred Dr. S. Radhakrishanan saying that we, in our country, look upon teacher as gurus or, as acharyas. An Acharya is one whose achar or conduct is exemplary. He must be an example of Sadachar or good conduct. He must inspire the pupils who are entrusted to his care with love of virtue and goodness. The ideal of a true teacher is "andhakaraniridhata gurur itya bhidhiyate" (Andhakar is not merely intellectual ignorance, but is also spiritual blindness). He, who is able to remove that kind of spiritual blindness, is called a 'guru'. Swami Vivekananda was also quoted saying that student should live from his very boyhood with one whose character is a blazing fire and should have before him a living example of the highest teaching. In our country, the imparting of knowledge has always been through men of renunciation. The charge of imparting knowledge should again fall upon the shoulder of Tyagis.

23. In para 12 of Judgment, Court in Avinash Nagra (supra) said as under:

"..............Indian society has elevated the teacher as `Guru Brahma, Gurur Vishnu Guru Devo Maheswaraha'. As Brahma, the teacher creates knowledge, learning, wisdom and also creates out of his students, men and women, equipped with ability and knowledge, discipline and intellectualism to enable them to face the challenges of their lives. As Vishnu, the teachers is preserver of learning. As Maheswara, he destroys ignorance. Obviously, therefore, the teacher was placed on the pedestal below the parents. The State has taken care of service conditions of the teacher and he owed dual fundamental duties to himself and to the society. As a member of the noble teaching profession and a citizen of India he should always be willing, self-disciplined, dedicated with integrity to remain ever a learner of knowledge, intelligently to articulate and communicate and imbibe in his students, as social duty, to impart education, to bring them up with discipline, inculcate to abjure violence and to develop scientific temper with a spirit of enquiry and reform constantly to rise to higher levels in any walk of life nurturing Constitutional ideals enshrined in Article 51A so as to make the students responsible citizens of the country. Thus the teacher either individually or collectively as a community of teachers, should regenerate this dedication with a bent of spiritualism in broader perspective of the Constitutionalism with secular ideologies enshrined in the Constitution as an arm of the State to establish egalitarian social order under the rule of law. Therefore, when the society has given such a pedestal, the conduct, character, ability and disposition of a teacher should be to transform the student into a disciplined citizen, inquisitive to learn, intellectual to pursue in any walk of life with dedication, discipline and devotion with an inquiring mind but not with blind customary beliefs............."

(Emphasis added)

24. We are really shocked when we see that these traditional belief on teachers are thrashed and demolished by persons like Examiner concerned in the present case, who has virtually failed to discharge his duty and failed to satisfy pious obligation, which students as well as University confided upon him that he will evaluate answer sheet properly and with application of mind.

25. It cannot be doubted that there can be difference in evaluation and for some answers, different Examiners/Evaluators may give different marks. It has various reasons and we do not want to have a research on this aspect in this judgment, since we understand and accept this variation inherent in the system. But, here is not a case of variation in evaluation. We are faced with a case where Examiner/Evaluator has virtually failed to evaluate answer sheet and has not even cared to read a large number of sheets of answer sheet. In a mechanical and casual fashion, he has awarded some marks to candidate without caring to future of student. Such Examiner/Evaluator is a blot on the pious position and entire community of teachers and has no right to continue to function as a teacher.

26. We also have serious concern as to how Examination Committee of Agra University is selecting teachers for evaluation purpose. There is no cross check system to prevent such injustice, where such scrupulous teachers have failed to discharge their duties in the manner they were expected to do so. Examination Committee of Agra University is also equally responsible. They being Expert in the matter are under an obligation to provide at least a reasonably adequate safeguard so that such cases of failure of a teacher in evaluation may not happen.

27. Future of even a single student cannot be compromised for any reason whatsoever. University has also a statutory obligation to have proper and effective evaluation of answer sheet of all Examinees. Every student has a right to know about level of his performance by assessment of his work in the hands of honest, capable and well trained efficient Teachers. This is high time when every educational institution must look into the matter and take appropriate and corrective steps so that such eventuality may not occur at all, otherwise people of country in general, and students community in particular, may loose faith in the system and that will be a black day to the entire education system in country. Its results may create havoc.

28. We should also keep in mind that younger generation is future of this country and merit and brightness of younger students cannot be allowed to be wasted and their career cannot be compromised due to such incident of unmindful, irresponsible type of assessment of answer sheet in examinations.

29. Coming back to facts of this case, we have no option but to direct University to award average marks of three Examiners, awarded to petitioner under order of this Court and treat that he has been awarded 20 marks in Physiology, Paper-II and accordingly correct his marks sheet and result and allow him to appear in further examinations accordingly.

30. We also find it appropriate to award a cost of Rs.1,00,000/- (i.e. rupees one lac) to petitioner, which at the first instance shall be payable by Agra University but it shall have liberty to recover the amount from concerned Examiner, after holding such enquiry as provided in law.

31. We hope and trust that Agra University, now shall take appropriate steps so that such irresponsible, scrupulous, unmindful and negligent Examiners/Evaluators are not deployed in future to evaluate answer sheets, whether it is a professional examination or general subjects or otherwise.

32. We also provide that, if any student who had appeared in examination of Agra University in the preceding three years, apply for reassessment or re-evaluation, taking present case as illustration, Agra University shall make reassessment/re-evaluation of answer sheet(s) of such student(s) and such case(s) shall not be declined for re-evaluation/reassessment only on the ground that there is no provision for re-evaluation in the Statute of University.

33. Copy of this judgment be also forwarded to Principal Secretary (Higher Education) as well as Secretary (Secondary Education), so that they may also look into the matter and ensure that Examiners/Evaluators of answer sheets are deployed in a reasonably efficient manner and there should be strict instructions so that no student may suffer on account of negligence/carelessness etc. on the part of Examiners/Evaluators.

34. Writ petition is allowed in the manner as aforesaid.

Order Date : 21.05.2019

Manish Himwan